Black’s Law Dictionary, 4th Edition defines “Constitution” as “The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers.” (Emphasis added)

What if a government represents not a “nation or state” but a city or county full of people; does that government also require a constitution? What if a state, which has a constitution, incorporates a city or county as a political subdivision of the state, is that city or county bound only by the limits of the state constitution, or must it operate from a more narrow set of powers? There being 89,004 local governments in the United States, this is a significant question.[ii]

It is a question politicians have wrestled with since the first elective government was set in place in 1619 Virginia: what are the limits of authority to be exercised by a state’s lower-tiered governments?

John Forrest Dillon (1831-1914) was an American jurist who served on both federal and Iowa state courts during his lengthy career.[iii] In 1872, while sitting on what would later become the Court of Appeals for the Eighth Circuit, he published an influential extended essay or treatise on the power of states over municipal governments, entitled “Municipal Corporations,” or, later, “The Law of Municipal Corporations.” Dillon argued, quite persuasively it seems, that municipal governments can operate only within the expresspowers given them by their state governments. Dillon’s idea can be summarized this way:

“A municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words (from the state); second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation-not simply convenient, but indispensable; and fourth, any fair doubt as to the existence of a power is resolved by the courts against the corporation.”[iv]

In essence, since they are created by the state, local governments exist to perform the tasks of the state at the local level. This makes perfect sense. If it were otherwise, an additional constitution would seem to be required; no government should be allowed to operate without clearly specified limits to its power, or tyranny would soon commence. And if a city, for instance, were to operate with only the bounds provided by the state constitution, conflicts would quickly arise over the boundary between the city’s and state’s jurisdiction. Confusion would reign supreme.

“The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse,” said James Madison on the floor of the Virginia Ratifying Convention in 1788. A hundred years later, America’s cities were growing by leaps and bounds. Tax revenues were increasing exponentially and corruption soon followed. “Grafting, which is the unscrupulous use of a politician’s authority for personal gain, was a common practice in utility franchising and public works projects. To make matters worse, local governments borrowed outrageous sums of money in order to attract big businesses and railroad com­panies. Unable to pay businesses back, local officials dissolved their cities and left the debt to the state. Lord Bryce of England observed in 1888: ‘There is no denying that the government of cities is one conspicuous failure of the United States.’”[v]

In Hunter v. Pittsburgh (1907), the Supreme Court cited Dillon’s Municipal Corporations and fully adopted his view of state power over municipalities. Note, this was while Dillon was yet alive – what an honor to have your work cited by the highest court in the land!

Today, the municipalities of forty states operate under some form of Dillon Rule, my home state of Virginia being one of them. There are different versions; some states apply Dillon’s Rule only to cities, some only to counties (Alabama) some only to townships (Indiana).

Louisiana applies the rule only to “pre-1974 charter municipalities.”

The alternative to Dillon’s Rule is called Home Rule,[vi] the principle that local government can exert broad-based power, only restrained by the state and national constitutions. We should realize that before Dillion published his ideas in 1872, there was only home rule or its un-named equivalent for the nearly one hundred years that came before Dillon under the Constitution. Whether a local government is governed by the Dillon Rule or Home Rule, the ultimate decision regarding what power they do possess resides with the state government.

But Dillon’s Rule is increasingly coming under attack. Many elected officials of localities controlled by Dillion’s Rule today contend they are “handcuffed” by its restrictions.[vii] They argue that Dillion’s Rule provides them little to no power to deal with certain problems, particularly growth within their jurisdiction or technologically complex issues such as fracking, which may extend across jurisdictional boundaries. The proponents of Home Rule argue that there are areas where state power should not infringe on that of local government and many are pushing to have their state either change completely to Home Rule or at least loosen the restrictions of Dillon’s Rule. Many states only apply Home Rule to certain municipalities. Arizona, for example, only applies Home Rule to cities with a population of at least 3,500 people. Thirty-one states apply either straight Dillon’s Rule or a combination of Dillon’s Rule and Home Rule to local jurisdictions.

One problem with Home Rule is uniformity. City governments operating under Home Rule may vary significantly in the quality and effects of their governance due to the way various administrations over the years have exerted their more loosely defined power. Under Dillon’s Rule municipalities generally operate from a standard set of powers and/or restrictions.

The states of the United States were intended to be, essentially, laboratories within which “experiments” in government could be tried. The Tenth Amendment supports this view, stating that whatever political power was not delegated to the national government remained with the states and their people. Whether Home Rule or Dillon’s Rule or some combination of both will win out remains to be seen. In any case, the idea of a self-ruling people demands that the decision not be left to the politicians.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140. Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[i] Variously attributed to Associated Press Washington bureau chief Byron Price (1932) and to Chicago writer Finley Peter Dunne (1867-1936), but most famously used by former Speaker of the House Tip O’Neil.

Thank you for a very interesting essay that answered my previous questions of what is home rule.

I can understand frustration with Dillon Rule. We all want, or think we want, freedom to do what seems best. But as I gain wisdom I come to see more and more that boundaries can be blessings. I routinely pray, “Lord, protect me from – myself.”

I wonder what the data, evidence tells us about excesses or failures of home rule. Was Lord Bryce’s observation an accurate depiction of Home Rule. Are we seeing this repeat as more communities are allowed to move towards limited or full Home Rule. If not, then perhaps HR is acceptable and/or preferred. Or is Home Rule just an extension of the unrestrained individualism that is becoming more prevalent.

I’ve known a little about “home rule,” mostly hearing about it at election times, but never heard of Dillon’s Rule. This is very interesting. Although it seems that Home Rule is more in line with the American spirit of 1776 and 1787, what pops into my mind is the current problems with Sanctuary Cities, which I assume is difficult for a state of federal government to challenge if a city is under Home Rule.